Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its Own Drummer?

University of New Brunswick Law Journal, 2010

27 Pages Posted: 23 Nov 2009 Last revised: 9 Dec 2013

See all articles by Joshua Karton

Joshua Karton

Queen's University Faculty of Law; National Taiwan University - College of Law

Date Written: November 19, 2009

Abstract

National courts have restricted party autonomy in choice of law in a variety of ways. In international arbitration, on the other hand, the march of party autonomy has been unhindered. National courts have abetted this process in the international arbitration context, even as they have maintained restrictions on party autonomy in choice of law within their own legal systems. This phenomenon, combined with the gradual loosening of restrictions on party autonomy in national legal systems, has led some to claim that international arbitration is leading the nations of the world into a global choice of law regime in which party autonomy reigns. Such triumphalists look forward to the day when party autonomy is as unrestricted in national courts as it is in arbitration.

This article argues that such a day is unlikely to arrive. The different pressures and interests that shape national court litigation on the one hand, and international arbitration on the other, are likely to generate different levels of support for party autonomy in choice of law. As a result, regardless of whether more party autonomy in choice of law is preferable in all contexts, or whether it ought to have a wider scope in arbitration than in litigation, arbitrators are likely to maintain greater deference to party autonomy than will national legislatures or courts.

Note: This paper represents an early version of some concepts and arguments that I develop better and in more depth in my book, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013).

Suggested Citation

Karton, Joshua, Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its Own Drummer? (November 19, 2009). University of New Brunswick Law Journal, 2010. Available at SSRN: https://ssrn.com/abstract=1509764 or http://dx.doi.org/10.2139/ssrn.1509764

Joshua Karton (Contact Author)

Queen's University Faculty of Law ( email )

Macdonald Hall
128 Union St.
Kingston, Ontario K7L3N6
Canada

National Taiwan University - College of Law ( email )

No.1, Sec.4, Roosevelt Road
Taipei, 10617, 10617
Taiwan

Register to save articles to
your library

Register

Paper statistics

Downloads
695
Abstract Views
3,528
rank
36,986
PlumX Metrics